. Matthew Haist, Deterrence in a Sea of Just Deserts: Are Utilitarian Goals Achievable in a World of Limiting Retributivism, 99 J. Crim. L. & Criminology 789 ( 2008-2009) applied to the retributive factors in determining just deserts, will actually ESSAYS IN THE THEORY OF RESPONSIBILITY 55, 61 (1970). 154 See, e.g.">

What Retributive Justice Is

The central idea is that the offender has gained unfair advantages through his or her behavior, and that punishment will set this imbalance straight.

Central to retributive justice are the notions of merit and desert. We think that people should receive what they deserve. This means that people who work hard deserve the fruits of their labor, while those who break the rules deserve to be punished. In addition, people deserve to be treated in the same way that they voluntarily choose to treat others.[1] If you behave well, you are entitled to good treatment from others.

Immanuel Kant uses a debt metaphor to discuss the notion of just desert. Citizens in a society enjoy the benefits of a rule of law. According to the principle of fair play, the loyal citizen must do their part in this system of reciprocal restraint. An individual who seeks the benefits of living under the rule of law without being willing to make the necessary sacrifices of self-restraint is a free rider. He or she has helped themself to unfair advantages, and the state needs to prevent this to preserve the rule of law.[2]

Terrence Lyons talks about the balance that lies between providing incentives for dictators to step down and enforcing punishment mechanisms for leaders who have behaved unjustly.

In cases of wrongdoing, someone who merits certain benefits has lost them, while someone who does not deserve those benefits has gained them. Punishment "removes the undeserved benefit by imposing a penalty that in some sense balances the harm inflicted by the offense."[3] It is suffered as a debt that the wrongdoer owes their fellow citizens. Retributive justice in this way aims to restore both victim and offender to their appropriate positions relative to each other.

Retributive justice is in this way backward-looking. Punishment is warranted as a response to a past event of injustice or wrongdoing. It acts to reinforce rules that have been broken and balance the scales of justice.[4]

Why Retributive Justice Matters

Protracted conflicts often involve violence or cruelty suffered by innocent civilians. In some cases, this violence is carried out systematically, in the form of genocide, ethnic cleansing, enslavement, or systematic racial discrimination. In other cases, rapes, murders, and acts of torture may be carried out more haphazardly.

In those cases where the parties involved are "at war," such actions violate the war convention and the rules of jus in bello. They are war crimes. But even when a war has not been officially declared, these cruel acts of murder and torture constitute human rights violations, prohibited by international law.

Many believe that those who perpetrate such war crimes, or crimes against humanity, should be brought to justice. This is typically accomplished through international courts or tribunals that carry out war crimes adjudication.

Retributive justice is a matter of giving those who violate human rights law and commit crimes against humanity their "just deserts." Punishment is thought to reinforce the rules of international law and to deny those who have violated those rules any unfair advantages. Together with restorative justice, retribution is concerned with restoring victims and offenders to their rightful position.

The Negative Side of Retributive Justice

The idea that we should treat people as they deserve is commonly accepted. We do not think that war criminals should be allowed to live carefree lives after committing unspeakable crimes against humanity.

However, there is a dangerous tendency to slip from retributive justice to an emphasis on revenge. Vengeance is a matter of retaliation, of getting even with those who have hurt us. It can also serve to teach wrongdoers how it feels to be treated in certain ways. Like retribution, revenge is a response to wrongs committed against innocent victims and reflects the proportionality of the scales of justice. But revenge focuses on the personal hurt involved and typically involves anger, hatred, bitterness, and resentment. Such emotions are potentially quite destructive. Because these intense feelings often lead people to over-react, resulting punishments can be excessive and cause further antagonism.

In addition, punishments dictated by revenge do not satisfy principles of proportionality or consistency. This is because revenge leads to punishments that vary according to the degree of anger provoked. Wrongs that do not provoke anger will receive no response. Acts that provoke a great deal of anger will, on the other hand, provoke an overly intense response and lead to reciprocal acts of violence.

For example, resentment about past injustice can "motivate people who otherwise live peaceably to engage in torture and slaughter of neighbors identified as members of groups who committed past atrocities."[5] Devastating inter-group violence in the form of mass killings can result.

It is not surprising that revenge seldom brings the relief that victims seek. The victim simply gets caught up in feelings of hatred.[6] Vengeful motives lead individuals to exact more than necessary, causing even further harm and setting in motion a downward spiral of violence.[7] Once there is this sort of violence break over, it is difficult to break out of the cycle of revenge and escalation. Overly harsh punishments do not make society any more secure and only serve to increase the level of harm done. In addition, in an atmosphere of heightened violence, there is little room for apology or forgiveness for wrongs committed.

Many believe that "the victim should not seek revenge and become a new victimizer but instead should forgive the offender and end the cycle of offense."[8] However, forgiveness does not take the place of justice or punishment, nor does it rule out giving the wrongdoer their just deserts.

Justice, Not Vengeance

Mark Amstutz, a professor at Wheaton College, finds fault with retributive approaches to justice because they do not pay sufficient attention to how individuals are to reconstruct their lives.

The idea that wrongdoers should be "paid back" for their bad deeds need not lead to a demand for primitive vengeance.

Retributive justice requires that the punishment fit the crime and that like cases be treated alike. Wrongdoers deserve blame and punishment in direct proportion to the harm inflicted. Retribution can therefore be seen as vengeance curbed by outside intervention and the principles of proportionality and individual rights.[9]

Indeed, one way to avoid the escalation of violence is "to transfer the responsibilities for apportioning blame and punishment from victims to public bodies acting according to the rule of law."[10] It is commonly thought that formal institutions with trained judiciaries are best equipped to carry out just retribution. Such institutions can effectively bring offenders to justice by giving them the punishment they deserve.

In the context of international affairs, there is a need to give wrongdoers what they deserve, but in a way that avoids further escalation of the conflict. War crimes adjudication carried out by international courts is one avenue of retributive justice.The International Criminal Court (ICC), for example, operates on the premise that impunity for perpetrators of genocide, crimes against humanity, crimes of aggression, and war crimes is unacceptable. In March 2012, the Court convicted Thomas Lubanga Dyilo, a major player in the Democratic Republic of the Congo’s Ituri conflict, of the war crimes “of enlisting and conscripting of children under the age of 15 years and using them to participate actively in hostilities.”[11] Lubanga was the first person to be convicted by the tribunal.

Trials for war crimes can convert the desire for revenge into state-managed punishment that is proportional and fair. However, in some cases of large-scale war violence such trials may be unlikely or ineffective. Restorative justice, through reparations or compensation, might often be the more effective option.

Additional Resources

“Remember the old days?” candidate Trump asked the crowd at a July 2016 rally. “A deserter, what happened?” Trump pantomimed aiming a rifle and pulled the invisible trigger, answering his own rhetorical question with a deadpan “Bang.” He was riffing on the case of Sergeant Bowe Bergdahl, who walked away from his battalion in 2009 and was captured by the Afghan Taliban. As CNN reported, six U.S. soldiers were killed during the months-long manhunt for Bergdahl. The facts of his captivity come under some dispute, as did his release as part of an unprecedented prisoner swap. The issue was a resonant drumbeat on Trump’s campaign stops, pounded out mercilessly as an example of bad deal-making. Hours after Trump’s inauguration, Bergdahl’s defense team filed a motion arguing that the commander-in-chief’s fiery rhetoric coupled with his new role created “unlawful command influence” that precluded any possibility that Bergdahl would get a fair trial. That motion was denied, and Bergdahl pleaded guilty in court today.

Over the years, the media has also made much of the dramatic old days when desertion was deadly. We revisit and reenact the events on January 31, 1945, in Sainte-Marie-aux-Mines, France, where Private Eddie Slovik was executed by a firing squad formed from a dozen of his fellow soldiers, under orders issued by Eisenhower. In Kurt Vonnegut’s Slaughterhouse-Five, or The Children’s Crusade: A Duty-Dance with Death, Billy Pilgrim finds William Bradford Huie’s The Execution of Private Slovik under a waiting-room seat cushion. From it, Vonnegut’s protagonist reads an excerpt of an actual appellate report written by a judge advocate general: “If the death penalty is ever to be imposed for desertion, it should be imposed in this case, not as a punitive measure nor as retribution, but to maintain that discipline upon which alone an army can succeed against the enemy.” Pilgrim reacts with glib fatalism—“So it goes.” In the made-for-TV version of The Execution of Private Slovik, Slovik is played by Martin Sheen who, five years later, would play Captain Benjamin L. Willard in Francis Ford Coppola’s Apocalypse Now (1979), a character tasked with the extrajudicial assassination of another deserter, Colonel Kurtz.

Bowe Bergdahl is one part Billy Pilgrim, one part Eddie Slovik—a symbol of our weaker selves and a stand-in for those of us who’ve lost heart. But unlike Pilgrim and Slovik, Bergdahl won’t get gunned down. He doesn’t face the death penalty, despite the severity of the Uniform Code of Military Justice, which states that “Any person found guilty of desertion or attempt to desert shall be punished if the offense is committed in time of war, by death or such other punishment as a court-martial may direct.” Bergdahl’s lesser desertion charge carries a maximum sentence of five years. It’s his second charge under Article 99, “Misbehavior Before The Enemy,” an obscure carryover from the older Articles of War folded into the Uniform Code of Military Justice in 1951, that has Bergdahl facing the possibility of life in prison.

The discreet Pentagon policy on desertion could be renamed “So It Goes.”

Given the unprecedented American incarceration rates, it may come as a surprise that Bergdahl is not presently in confinement. He’s flying a D4D—desk, 4 drawers—assigned to clerical duties at Fort Sam Houston, Texas. He’s even allowed off post in supervised company. Indeed, the extremes of the Bergdahl case have overshadowed this little-known revelation: the U.S. military is more merciful in its treatment of deserters than it lets on. The discreet Pentagon policy on desertion might even be renamed “So It Goes.” In his executioner’s rant, Trump hit upon something resembling truth: “Twenty years ago it was bang but slowly,” he said. “Ten years ago it was long prison. Today, they’re probably talking about nothing.” By and large, the U.S. Armed Forces don’t hunt down deserters. They don’t have the manpower or the resources. These days, some 95 percent of deserters aren’t prosecuted. Deserters receive an administrative discharge but only after they return, either voluntarily or by arrest, to military control. Each branch of the military differs, but the Army, the largest American force, displays little interest in bringing most deserters to court-martial; much cheaper and easier to let them walk. Discharge—in most cases, not dishonorable—is the most efficient way for the Army to rid itself of soldiers who are, statistically, the least enthusiastic and the most troubled enlistees, financially and emotionally. You desert, and the Army doesn’t have to provide your benefits. It doesn’t have to pay disability, and a high percentage of deserters have psychiatric problems. You’re cut off, and the Army got your service at cost. If you’re not a PFC Bergdahl deserting from a combat zone—and you’re among the estimated 50,000-plus absent soldiers presently at large—you’re essentially granted an amnesty.

This information isn’t readily available. The powers-that-be seem to believe that if every soldier knew the Pentagon’s unofficial policy on desertion, more soldiers would skedaddle. Indeed Eddie Slovik’s legend is a powerful cautionary tale, but its moral is deceptive: during World War II, of the approximately 50,000 U.S. soldiers who deserted, 20,000 were tried and sentenced. Forty-nine received death sentences. All but one of those sentences was commuted. In fact, the only U.S. soldier actually executed for desertion since the Civil War was the infamous Private Eddie Slovik.

There is general agreement in the military that AWOL and desertion rates are an indicator of the stress on military personnel. After a decade-and-a-half in what feels like a forever war—if this were ancient Greece, Troy would be seven years sacked and Odysseus halfway home by now—most of us are spent, soldiers and civilians alike.

Comprehensive contemporary desertion rates are impossible to come by without classified security clearance, and the public numbers are woefully underreported. Mother Jones put the count for the first decade of the War on Terror, from 2001 to 2011, at 29,000 Army desertions. Nearly fifteen years ago, the U.S. Army Research Institute concluded their last unclassified comprehensive study on the issue, called “What We Know About AWOL and Desertion: A Review of the Professional Literature for Policy Makers and Commanders.” In 2012, a lesser AWOL and desertion assessment was included as part of “Army 2020: Generating Health and Discipline in the Force Ahead of the Strategic Reset.” It lays out a policy under consideration that would allow the Army to separate deserters in absentia, without returning them to military control. This would set apart soldiers “absent for more than two years and who are not facing additional charges or who are not considered high risk,” from more threatening absentees, like those “wanted for crimes including homicide, armed robbery, assault, sexual assault, illegal drug use or possess a top secret security clearance.” This first group of soldiers would “receive a characterization of service of Other Than Honorable,” and “discharging these soldiers in absentia would save Army time and resources.”

No doubt our preternaturally uninformed president would be shocked by this leniency, but he should have more sympathy for the volunteers who change their minds and want to walk. These American minds—not exactly starving hysterical naked, nor seeing Mohammedan angels—aren’t yet fully formed when they’re first made up. The young women and men, the vast majority of fellow Americans choosing to fight our wars for us, have a right to know what happens to them if they experience changes of heart or mind, and want to abandon their posts. Anything less is coercion.

If you’re one of those at-large soldiers, here’s what happens when you go AWOL. Your commanding officer notifies your next of kin. An inquiry is undertaken to ascertain your location and your possible reasons for disappearing. Relevant personnel, like the provost marshal, are notified. Necessary reports are filed. After thirty days, you’re classified as “Dropped from Rolls.” More forms are compiled in a deserter packet forwarded to the Army Deserter Information Point at Ft. Knox, Kentucky. This is the normal progression from absence without leave to desertion, but there are any number of impediments. Of the 18,010 soldiers who “deserted from FY2006–11, only 13,443 were reported to law enforcement.” Army commanding officers, for a variety of reasons, failed to report deserters in one-quarter of cases.

Threatening deserters with the firing squad has become a tough-guy pantomime for hacks and hams.

So what normally happens if a deserter surrenders? You’re taken to a Processing Confinement Facility. There, you go through the paperwork drill, which takes a couple of days. In most cases, you’re discharged with an “other-than-honorable” designation on your separation papers. You’re even free to seek an upgrade to a “general discharge under honorable conditions.” Either way, most deserters will be given a Chapter 10 general discharge. This discharge will not ruin your life: the federal government will still employ you; you get no GI Bill, but you’re still fully eligible for all other federal financial aid. Once you have your discharge papers, you lose TRICARE, but if you get your “other-than-honorable” upgraded, you get benefits back. With the 2016 Fairness for Veterans Act, signed into law by President Obama, these upgrades are now supposedly more likely than ever. But, given the flightiness of the current commander-in-chief, this could change at the drop of a tweet.

Some seventy-two years removed from the last American execution for desertion, the firing squad is no longer an effective deterrent. It’s become an act, a tough-guy pantomime for hacks and hams.

The hollow threat of a death sentence should no longer stand as an official punishment for desertion during wartime. If, under Trump, we are facing a further extension of conventional ground forces in Afghanistan after a full generation of American war-waging and deficit increases, the Trump Administration must find other, less expensive ways to boost troop morale. It’s time we strike the death penalty from Article 85 of the Uniform Code of Military Justice. The battlefield offers death threat enough.

If our civilian and military leaders can’t count on friendly fear to maintain the commitment of our fighting force, maybe future administrations will be less inclined to indefinitely commit our troops to questionable wars. Or so it goes.